Gardner v. Pulley et al

Filing 45

ORDER ON MOTIONS FOR SUMMARY JUDGMENT entered by Chief Judge James E. Shadid on 03/05/2015. For the reasons set forth above, Defendants Pulley and Lindorff's Motion for Summary Judgment 41 is GRANTED. The Motion for Summary Judgment by Defendants Sood and Nelson 37 is also GRANTED. Defendant Shar Fateilglien is DISMISSED for failure to effect proper and timely service. This matter is now TERMINATED, and all pending deadlines or hearings are VACATED. See full written Order.(JS, ilcd)

E-FILED

Thursday, 05 March, 2015 04:13:50 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
MARVIN GARDNER,
Plaintiff,

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)
)
v.
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ASST. WARDEN PULLEY, LOIS
)
LINDORFF, KUL B. SOOD, S. NELSON, )
and SHAR G. FATEILGIEN,
)
Defendants.
)

Case No.: 13-1384

ORDER ON MOTIONS
FOR SUMMARY JUDGMENT
The Defendant’s have filed Motions for Summary Judgment. They argue lack of
deliberate indifference, lack of personal involvement, and qualified immunity. The Motions are
granted, as to deliberate indifference and/or lack of personal involvement, for the reasons set
forth below. As such, the issue of qualified immunity need not be addressed.
BACKGROUND
Plaintiff, Marvin Gardner, is an inmate with the Illinois Department of Corrections, who
was incarcerated at Hill Correctional Center at the time relevant to this action.
Plaintiff asserts a violation of his Eighth Amendment Rights. Specifically, Plaintiff
alleges that Defendants were deliberately indifferent to his serious medical condition. Plaintiff
claims that he did not receive proper treatment when he injured his left thumb deflecting a soccer
ball at Hill on August 7, 2012.
Defendant Pulley is the Assistant Warden of Programs at Hill. Defendant Lindorff was
the Health Care Unit Administrator. Dr. Sood was the Medical Director, while Shawn Nelson
was a radiology technician who took an x-ray of Plaintiff’s thumb, and Shar Fateilgien was a
nurse.
Defendants Pulley and Lindorff argue that they were not personally involoved in
Plaintiff’s medical care and, therefore, cannot be held liable. Defendants Sood and Nelson assert
that Plaintiff did receive proper medical treatment and that they were not indifferent to any
serious medical condition. It does not appear that Defendant Fateilgien was ever properly
identified or served in this matter, and she is therefore dismissed.
Plaintiff was seen in the health care unit on August 7, 2012, after injuring his thumb. Dr.
Sood examined his thumb, prescribed medication for pain and to reduce the swelling, and
ordered an x-ray of Plaintiff’s thumb to check for dislocation. His thumb was x-rayed on August

9, 2012. The x-ray report by Dr. Cordova found only degenerative changes and indicated no
fracture, acute bony abnormality, or dislocation. Dr. Sood reviewed the x-ray report, ruled out a
dislocation, and determined that Plaintiff likely had long-standing conditions with his thumb that
predated the soccer injury. His thumb was wrapped with tape and a stick, but he was told that in
Dr. Sood’s medical judgment, the thumb should not be manipulated, and there was nothing more
to be done. He saw Dr. Sood again on September 12, 2012, because his thumb was still
bothering him. Dr. Sood observed that Plaintiff’s thumb had improved and range of motion was
restored. Another x-ray was ordered for September 13, 2012 for purposes of comparison. The
x-ray report again noted significant osteoarthritis but no significant change, bony erosive change,
or acute bony fracture. Dr. Sood reviewed the x-rays again, reiterated that his opinion had not
changed from his prior assessment, and prescribed more pain medication. Plaintiff asked Dr.
Sood to refer him to another hospital, but that didn’t happen.
On September 30, 2012, Plaintiff was seen by a nurse for sick call, but her notes indicate
that Plaintiff refused to let her examine his thumb at that time. Plaintiff saw Dr. Sood again on
October 9, 2012, reporting that while he still had some pain, his thumb was much better. Dr.
Sood examined his thumb and observed full range of motion with abduction. Dr. Sood gave
Plaintiff the option of discontinuing his lawn mowing job at the institution, but Plaintiff said he
was okay to continue it. Plaintiff had no further contact with Dr. Sood.
.
On October 12, 2012, Plaintiff filed a grievance requesting to be seen by a bone
specialist, to which Defendant Lindorff responded on October 16, 2012. Plaintiff filed this
action on August 27, 2013. Defendants have now moved for summary judgment. Plaintiff failed
to respond to either motion, thereby admitting the factual assertions contained therein, and this
Order follows.
SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact that the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must
construe the evidence in the light most favorable to the non-moving party and draw all justifiable
inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
If the evidence, however, is "merely colorable, or is not significantly probative or merely raises
'some metaphysical doubt as the material facts,' summary judgment may be granted." Liberty
Lobby, 477 U.S. at 249-50. Overall, "[s]ummary judgment is appropriate if, on the record as a
whole, a rational trier of fact could not find for the non-moving party." Durkin v. Equifax Check
Services, 406 F.3d 410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d
991, 995 (7th Cir. 2003)). Summary judgment is mandated when, after adequate time for
discovery, the party who bears the burden of proof fails to make a showing sufficient to establish
an essential element of that party's case. Celotex, 477 U.S. at 323.

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Thus, in order to overcome the undisputed facts set forth in defendants' motion for
summary judgment, plaintiff cannot rest on the allegations in his complaint but must point to
affidavits, depositions or other evidence of an admissible sort that a genuine dispute of material
fact exists between parties. Fed. R. Civ. P. 56(e)(2); Behrens v. Pelletier, 516 U.S. 299, 309
(1996).
Deliberate Indifference Standard
The Eighth Amendment's proscription against cruel and unusual punishment imposes
upon prison officials the duty to provide adequate medical care to incarcerated individuals.
Boyce v. Moore 314 F.3d 884, 888-889 (7th Cir. 2002). In order to prove a violation of the
Eighth Amendment, a plaintiff must establish: (1) an objectively, serious medical condition; and
(2) deliberate indifference by the prison officials to that condition. Johnson v. Snyder, 444 F.3d
579, 584 (7th Cir. 2006) (citing Zentmyer v. Kendall County, 220 F.3d 805, 810 (7th Cir. 2000));
Farmer v. Brennan, 511 U.S. 825, 834 (1994).
A serious medical need is one that ". . . has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the necessity
for a doctor's attention." Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). Indications
that a prisoner has a serious medical need arise with, "[t]he existence of an injury that a
reasonable doctor or patient would find important and worthy of comment or treatment; the
presence of a medical condition that significantly affects an individual's daily activity; or the
existence of chronic and substantial pain." Gutierrez, 111 F.3d at 1373. "Mere negligence or
even gross negligence does not constitute deliberate indifference." Snipes v. DeTella, 95 F.3d
586, 590 (7th Cir. 1996).
"The deliberate indifference standard is a subjective one." Estate of Novack v. County of
Wood, 226 F.3d 525, 529 (7th Cir. 2000). "To satisfy the subjective component, a prisoner must
demonstrate that prison officials acted with a 'sufficiently culpable state of mind.'" Greeno v.
Daley, 414 F.3d 645, 653 (7th Cir. 2005) (Farmer, 511 U.S. at 834). To be deliberately
indifferent, a defendant "must know the serious risk to the prisoner's health, i.e., the serious
medical need at issue, and they must also consciously disregard that risk/need so as to inflict
cruel and unusual punishment upon the prisoner." Johnson v. Doughty, 433 F.3d 1001, 1010 (7th
Cir. 2006). Courts must "examine the totality of the inmate's medical care when considering
whether that care evidences deliberate indifference to his serious medical needs." Dunigan ex
rel. Nyman v. Winnebago County, 165 F.3d 587, 591 (7th Cir. 1999) (quoting Gutierrez v.
Peters, 111 F.3d 1364, 1369 (7th Cir. 1997)).
The mere failure of prison official to choose the best course of action does not amount to
a constitutional violation. Peate v. McCann, 294 F. 3d 879, 882 (7th Cir. 2002). A doctor's
mistaken belief that his treatment will succeed vitiates any possibility of deliberate indifference,
and a difference of opinion between physicians is insufficient to create an issue of fact as to
deliberate indifference. Norfleet v. Webster, 439 F. 3d 392, 396 (7th Cir. 2006).

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I.

Dr. Sood

Dr. Sood is a licensed physician and has served as the medical director at various
correctional centers within the State of Illinois since 1990.
Dr. Sood examined Plaintiff twice shortly after his alleged injury. Both times, Dr. Sood
ordered x-rays and pain medication. After reviewing the radiologists’ reports from the x-rays
showing no fracture, dislocation, or bony abnormality, Dr. Sood determined that Plaintiff had
suffered from degenerative changes for quite some time prior to deflecting the soccer ball in the
yard on August 7, 2012. In his medical judgment, he determined no further treatment was
necessary for his arthritis given that full range of motion was restored and that referral to a bone
specialist or hand surgeon was not medically indicated.
The facts, even when construed in the light most favorable to Plaintiff, indicate that Dr.
Sood was not deliberately indifferent to plaintiff's medical needs and that his medical needs did
not rise to the level of seriousness necessary to support a claim. Given the results of the x-rays,
there is nothing in the record to indicate that Dr. Sood’s treatment was blatantly inappropriate or
equivalent to criminal recklessness. Dr. Sood promptly addressed Plaintiff's complaints by
examining him, providing medication, and scheduling him for x-rays to rule out fracture or
dislocation. Plaintiff simply disagrees with the treatment provided, which is not actionable under
42 U.S.C. §1983, and fails to state a claim for deliberate indifference as a matter of law. See
Jackson v. Kotter, 541 F.3d 688, 698 (7th Cir. 2008) (holding that the Constitution is not a
medical code that mandates specific medical treatment); Gutierrez v. Peters, 541 F.3d 688, 698
(7th Cir. 2008); Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003).
II.

Defendant Nelson

Defendant Nelson’s only involvement in this action was to be the radiology tech that took
Plaintiff’s first x-ray on August 9, 2012. He had no involvement in either the evaluation or
interpretation of the x-rays or in Plaintiff’s medical treatment.
On this record, there is no genuine issue of fact that would make this amount to
deliberate indifference. Plaintiff has failed to demonstrate that Defendant Nelson acted with a
sufficiently culpable state of mind or consciously disregarded a serious risk of harm. Summary
judgment is therefore granted in favor of Defendant Nelson.
III.

Defendant Pulley

Plaintiff claims that Defendant Pulley was deliberately indifferent because as Assistant
Warden of Programs, she was over the health care unit, and the decision to deny him a referral to
a bone specialist would have been made by all of them together. However, there is no
respondeat superior liability under § 1983. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.

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2001). These allegations fail to demonstrate that Defendant Pulley was personally involved in
Plaintiff’s medical treatment.
Moreover, if a prisoner is under the care of medical experts, a non-medical prison official
will generally be justified in believing that this prisoner is in capable hands. Greeno v. Daley,
414 F.3d 645, 656 (7th Cir. 2005); Johnson v. Doughty, 433 F.3d 1001, 1010-12 (7th Cir. 2006).
It was reasonable for Defendant Pulley to believe that the medical staff were responding
properly to Plaintiff’s complaints. Plaintiff has not shown that he suffered from any serious
medical need, much less that Defendant Pulley had an adequately culpable state of mind to be
deliberately indifferent to any such need. Defendant Simmons is granted summary judgment.
IV.

Defendant Lindorff

Plaintiff claims that because Defendant Lindorff returned his grievance as a nonemergency, she was deliberately indifferent to his serious medical condition. This grievance was
the only interaction alleged to have involved Defendant Lindorff, other than the general claim
that as the administrator over the health services unit, the decision to deny him a referral to a
bone specialist would have been made by all of them. Again, Lindorff cannot be held liable on a
theory of respondeat superior under Sanville.
Plaintiff has put forward no evidence which shows that Defendant Lindorff was
personally involved or aware of Plaintiff’s medical complaints/treatment or that she deliberately
ignored those claims for the purpose of causing him harm or pain. She reviewed Plaintiff’s
complaints, saw that he was being treated by Dr. Sood, and reasonably relied on Dr. Sood’s
medical expertise. Accordingly, Defendant Lindorff is granted summary judgment, as well.
Greeno, 414 F.3d at 656; Johnson, 433 F.3d at 1010-12.
CONCLUSION
For the reasons set forth above, Defendants Pulley and Lindorff’s Motion for Summary
Judgment [41] is GRANTED. The Motion for Summary Judgment by Defendants Sood and
Nelson [37] is also GRANTED. Defendant Shar Fateilglien is DISMISSED for failure to effect
proper and timely service. This matter is now TERMINATED, and all pending deadlines or
hearings are VACATED.
ENTERED this 5th day of March, 2015.

s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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